You might not own your tattoo

Lawsuits concerning tattoo designs are increasing, so what does that mean for your ink?

Who really owns this tattoo? The person who created the image, not the woman sporting it. (Photo: Lishmay/flickr)

According to U.S. law, if an image is copyrightable, it's owned by the person who created it. If it's trademarked, it's owned by the company or entity that established it. But what happens if that image is inked onto your body permanently?

As tattoos become more prevalent — 3 in 10 Americans have a tattoo, and almost 50 percent of millennials rock some body ink according to a 2016 Harris poll — that question of ownership is becoming more common. Examples of trademarked tattoos include those of cartoon figures like Mickey Mouse or the Tasmanian Devil, sports team logos, corporate logos and characters from your favorite comic book. Copyrighted images can be individual works of art by a tattoo artist, or an original piece of art you create and bring to an artist to ink onto your skin. In that last case, you would own the rights to the image.

According to Shontavia Johnson, an intellectual property lawyer, who wrote a column in The Conversation, "To receive copyright protection, a creation must meet three requirements: It must be a work of authorship, it must be original and it must be fixed." Under those rules, a tattoo can be protected if it meets all three requirements.

Those are the grounds under which LeBron James and Kobe Bryant filed a copyright lawsuit against the "NBA 2K" video game creators — since the easily recognizable and well-known tattoos they created were featured in the game. Currently, the case is pending in New York courts. The first time this issue came to light in a high-profile case was in 2011, Johnson says, when the artist behind Mike Tyson's face tattoo sued Warner Bros. over "The Hangover 2," a movie in which one of the characters gets a tattoo just like Tyson's. The parties settled out of court on that one.

But this legal wrangling over who owns a tattoo feels wrong, doesn't it? As personal injury lawyer James Bergener says in the video below (skip to 1:43 for the tattoo discussion), "Once a tattoo goes on your body, isn't that just you?" For all of us whose bodies sport the art of someone we may have met briefly 10 or 20 years ago, the idea that the tattoo doesn't belong to us seems downright strange.

I have two tattoos. One I drew myself so no worries about its copyright, but the other was drawn and modified on my instructions by the artist who then inked it onto my shoulder. If I were to somehow become famous and the artist saw his work on my shoulder, I could be liable, which is obviously a disturbing thought. Naturally, the majority of tattoo artists aren't in the business of suing former clients over an issue like this, but it's technically legal.

And if one of my tattoos happened to be a Harley Davidson crest or the Nike swoosh, that's a clear trademark violation, and one that a company could take issue with.

This may seem far-fetched, but it has already happened. NYC coffee shop owner Sam Penix, was threatened with a trademark lawsuit in 2013 because he had an "I (coffee cup) NY" tattoo across his hand, which he then used as his shop's logo. It was, according to the New York Development Office, too close to the iconic trademarked "I (heart) NY" logo, and Penix avoided the lawsuit only after rules were set about how his hand could be photographed and where those images could be published.

Sam Penix created this logo based on a tattoo on his own hand. He faced legal action due to a potential copyright infringement. (Photo: m01229/flickr)

Penix could have faced some pretty serious punishment if he had gone to court. "According to current trademark law, if a person is ultimately found liable for trademark infringement, he or she could be required to pay money damages, court costs and attorney fees. A court could also require that the person stop using the trademark as well as destruction of infringing items. In the trademark-based tattoo context, one can imagine how practical issues might come into play. Could a court, for example, require tattoo removal?" writes Johnson.

While it's probably not a legal issue that most of us non-famous people will have to worry about, I think I'll be designing my next tattoo myself just to make sure I avoid any trouble.